This opinion is subject to revision before final

publication in the Pacific Reporter

2024 UT 8

IN THE

SUPREME COURT OF THE STATE OF UTAH

LARRY H. MILLER THEATRES, INC., et al.,*

Petitioners,

v.

UTAH STATE TAX COMMISSION, SALT LAKE COUNTY

BOARD OF EQUALIZATION, et al.,*

Respondents.

No. 20220345

Heard September 6, 2023

Filed March 7, 2024

On Petition for Review of Agency Decision

Utah State Tax Commission

Judge Jan Marshall

No. 20-2085

Attorneys*:

Steven P. Young, Nathan R. Runyan, Rebecca L. Taylor, Salt Lake, 

David J. Crapo, John T. Deeds, Bountiful, for petitioners

Sean D. Reyes, Att’y Gen., Michelle Lombardi, Asst. Att’y Gen., 

Melissa A. Holyoak, Solic. Gen., Stanford E. Purser, Deputy Solic. 

Gen., Salt Lake, for respondent Utah State Tax Commission

Sim Gill, Timothy A. Bodily, Bradley C. Johnson, Victoria Turner, Salt 

Lake, for respondent Salt Lake County Board of Equalization

* Other petitioners in this case are: Omkara, LLC; Shree Ganesh, 

LLC; The Ridge LP; Academy Square II, LLC; NNN Jamboree 

Promenade, LLC; Kohl’s Department Stores, Inc.; Clinton City Center, 

LLC; Layton Theater Investment Group LC; Legacy Crossing Theater 

LLC; MMP Springville Inc.; A&A Hospitality; Thanksgiving Point-US 

D LLC; Wilder Sage Enterprise Properties LLC; Tigriswoods LLC;

National Retail Properties LP; Grand America Hotel Company; Little 

America Hotel Company; Larry H. Miller Arena Corp.; The District 
MILLER THEATRES v. TAX COMMISSION

Opinion of the Court

2

LC; CF III SH Valley Fair LLC; Legacy Management Company LLC;

Jordan Commons Funding LLC; Municipal Building Authority, Salt 

Lake City Corp.; Cotton Mill II LC; Sunset Corner Properties LC; and 

Pineview Plaza LC.

* Other respondents in this case are: Utah County Board of 

Equalization, Utah County Assessor, Davis County Board of 

Equalization, Weber County Board of Equalization, Cache County 

Board of Equalization, and Washington County Board of Equalization.

* Other Attorneys: Jeffrey S. Gray, Paul Jones, Provo, for 

respondent Utah County Board of Equalization; Jeffrey S. Gray, 

Benjamin Stanley, Provo, for respondent Utah County Assessor; 

Troy Rawlings, Robert Tripp, Farmington, for respondent Davis 

County Board of Equalization; Christopher F. Allred, 

Courtlan Erickson, Ogden, for respondent Weber County Board of 

Equalization; Dane Murray, K. Taylor Sorensen, Logan, for respondent 

Cache County Board of Equalization; and Eric W. Clarke, Steven Scott, 

St. George, for respondent Washington County Board of Equalization.

JUSTICE POHLMAN authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE, 

JUSTICE PETERSEN, and JUSTICE HAGEN joined.

JUSTICE POHLMAN, opinion of the Court:

INTRODUCTION

¶1 This case asks us to interpret Utah Code section 59-2-1004.6, 

which, for ease of reference, we will often refer to as the Access 

Interruption Statute. This taxation statute allows a property owner to 

seek an adjustment to a county’s assessment of the fair market value 

of the owner’s property if the “property sustains a decrease in fair 

market value that is caused by access interruption.” UTAH CODE § 59-2-

1004.6(2). The statute defines “access interruption” as the 

“interruption of the normal access to or from property” due to 

circumstances beyond the owner’s control, including events such as 

road construction, vandalism, and adverse weather. Id.

§ 59-2-1004.6(1).

¶2 A motley group of businesses (collectively, Taxpayers)—

operating various retail and hospitality-related enterprises—applied 

for adjustments to the fair market value of their properties for tax year 

2020. Taxpayers argued that the COVID-19 pandemic and associated
Cite as: 2024 UT 8

Opinion of the Court

3

government-issued guidelines amounted to a circumstance beyond 

their control for purposes of Utah Code section 59-2-1004.6.

¶3 The Utah State Tax Commission (Commission) rejected this 

argument for two reasons. First, the Commission concluded that the 

pandemic was not a qualifying circumstance under the Access 

Interruption Statute, reasoning that the statute applies only if access 

was interrupted due to any of thirteen enumerated events or due to a 

similar event as determined by the Commission via administrative 

rule. And because the pandemic was neither enumerated by the 

legislature nor determined by administrative rule, the statute did not 

apply. Second, the Commission reasoned in the alternative that 

because the pandemic did not physically impede access to or from 

Taxpayers’ properties, the pandemic was not a qualifying 

circumstance under the Access Interruption Statute.

¶4 Taxpayers now petition for review of the Commission’s 

decision. They contend that the pandemic qualifies as an “access 

interruption event” under the Access Interruption Statute because it 

interrupted normal access to or from their properties and was beyond 

their control. Taxpayers recognize that the pandemic is not 

enumerated as a qualifying circumstance either by statute or 

administrative rule, but they argue that the statute “is broad enough 

to include the COVID-19 pandemic.”

¶5 In contrast, the Commission maintains that the pandemic is 

not a qualifying event. It first argues that for the Access Interruption 

Statute to apply, any unenumerated event must be similar to the 

enumerated events and must be added by the Commission through 

the rulemaking process. Because the pandemic is not identified in the 

statute or by rule, the Commission argues that Taxpayers cannot 

invoke the statute to seek adjustments to the fair market value 

assessments of their properties. The Commission also argues, in the 

alternative, that because the pandemic did not physically interrupt

access to Taxpayers’ properties, the statute does not apply.

¶6 We agree with the Commission on its first rationale, without

opining on its alternative rationale or any potential rule on this subject. 

Thus, we hold that subsection (1)(n) of the Access Interruption Statute 

allows only the Commission to add to the statute’s list of qualifying 

circumstances if the Commission determines by rule that the 

additional event is similar to the events enumerated in the statute. We 

further hold that because the pandemic is not an enumerated event 
MILLER THEATRES v. TAX COMMISSION

Opinion of the Court

4

and has not been added by administrative rule, the Commission’s 

decision is correct.

1

BACKGROUND2

¶7 On January 31, 2020, the World Health Organization (WHO) 

declared a global health emergency due to the COVID-19 outbreak. 

COVID-19 is a respiratory disease caused by a coronavirus strain that 

previously had not been identified in humans. It can easily spread and 

lead to serious illness or death.

¶8 In March 2020, the State of Utah declared a state of emergency 

due to the outbreak. WHO declared COVID-19 a pandemic, and 

Governor Gary R. Herbert then instructed people to stay home as 

much as possible, not to gather with others outside of the same 

household, not to travel to or participate in activities at places of public 

amusement or activity, and to limit travel to only essential travel. In 

April, Governor Herbert continued the March directives and added 

the instruction that people wear face coverings in any place of public 

accommodation.

¶9 By the end of April, Governor Herbert issued a plan to 

mitigate the economic consequences of COVID-19 (ULT plan). The 

ULT plan used color codes for the level of public health risk in the 

state’s counties, and it used phased guidelines, including certain 

industry-specific guidelines, with varying recommendations. 

Meanwhile, various counties took local emergency measures to 

respond to COVID-19. The Utah Department of Health issued a new 

guide to economic engagement in October 2020. This guide involved 

restrictions for individuals and businesses based on the weekly 

_____________________________________________________________

1 Because this case does not follow or arise from an agency decision 

on any rulemaking petition, the question of whether the pandemic is 

sufficiently similar to the listed events is not necessary to our opinion, 

and we do not reach it. We stress that nothing in this opinion should 

be read to endorse or reject the Commission’s conclusion that the 

pandemic is dissimilar to the circumstances the legislature outlined in 

the statute.

2 This petition for review arises from the Commission’s decision on 

cross-motions for summary judgment. When “there are cross-motions 

for summary judgment, we view the facts in the light most favorable 

to the losing party.” Rutherford v. Talisker Canyons Fin., Co., 2019 UT 27, 

¶ 14, 445 P.3d 474 (cleaned up).
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Opinion of the Court

5

number of COVID-19 cases in each county and the statewide 

availability of intensive care unit beds.

¶10 Against this backdrop, the Utah State Tax Commission issued 

a July 6, 2020 news release titled, “Property Valuations After 

COVID-19.” The news release explained that, under state law, 

property is valued as of “January 1st” and that “[b]ecause the 

COVID-19 pandemic happened after January 1, 2020, if there was any 

impact to your value, it will not be reflected in the 2020 valuation of 

your property.” The news release continued, “Any impact that may 

occur such as a decrease in value due to the COVID-19 pandemic, 

would not be reflected until the 2021 valuation.” Notably, the 

Commission has not issued any rule stating that global pandemics or 

related government orders are events that could cause “access 

interruption” for purposes of the Access Interruption Statute.

¶11 Taxpayers applied to their county boards of equalization for 

adjustments in their properties’ fair market values under the Access 

Interruption Statute for tax year 2020. Taxpayers operate various 

enterprises, such as hotels, movie theaters, and retail stores, and they 

represent a variety of businesses identified in the ULT plan. Taxpayers 

asserted that they had “reduced income attributable to the ongoing 

pandemic” and that their properties had, since January 1, 2020, 

sustained decreases in fair market value that were caused by “access 

interruption.” In Taxpayers’ view, “the COVID-19 pandemic and its 

attendant government-imposed restrictions” caused access 

interruption in accordance with Utah Code section 59-2-1004.6, 

entitling them to adjustments in the fair market values of their 

properties.

¶12 The majority of the county boards of equalization denied 

Taxpayers’ applications.3 Taxpayers then appealed to the 

Commission. The respondents (collectively, Counties) and Taxpayers 

agreed to consolidate the appeals with respect to the common legal 

issue, but they stipulated that “with respect to factual issues, including 

individual valuation issues, the appeals will not be consolidated but 

will proceed individually for consideration by the Commission once 

the common legal issue has been addressed.” Accordingly, the 

Commission consolidated the numerous appeals for the limited 

purpose of “deciding the legal, statutory interpretation issue.”

_____________________________________________________________

3 The boards of equalization for Utah and Iron counties allowed for 

a fair market value adjustment under the Access Interruption Statute. 

The Utah County Assessor appealed to the Commission, but the Iron 

County Assessor did not.
MILLER THEATRES v. TAX COMMISSION

Opinion of the Court

6

¶13 Both sides moved for summary judgment, and the 

Commission ultimately granted summary judgment to the Counties 

on two grounds. First, although the Access Interruption Statute allows 

for the possibility that “any circumstance beyond the control of the 

owner” could interrupt access to a property, the Commission reasoned 

that section 59-2-1004.6 is not without limit. Specifically, the 

Commission concluded that if a circumstance (like the pandemic) is 

not enumerated in the statute, it is not a qualifying event unless it is 

both similar to the enumerated events and has been identified as a 

qualifying event by Commission rule. It explained that the Access 

Interruption Statute requires that additional qualifying events can be 

added only by rulemaking, which “ensure[s] uniform application of 

these circumstances by the counties.” Alternatively, the Commission 

reasoned that because the pandemic did not create an impediment to 

physically accessing Taxpayers’ properties, the pandemic did not 

interrupt access and thus the statute did not apply. Taxpayers jointly 

seek judicial review of the Commission’s decision.

ISSUE AND STANDARD OF REVIEW

¶14 Taxpayers contend that the Commission erred in concluding 

that the COVID-19 pandemic is not a qualifying event under the 

Access Interruption Statute. “We review the Commission’s statutory 

interpretations for correctness, granting no deference to its conclusions 

of law.” Summit Operating, LLC v. Utah State Tax Comm’n, 2012 UT 91, 

¶ 7, 293 P.3d 369; see also UTAH CODE § 59-1-610(1)(b) (“When 

reviewing formal adjudicative proceedings commenced before the 

commission, the Court of Appeals or Supreme Court shall: . . . grant 

the commission no deference concerning its conclusions of law, 

applying a correction of error standard, unless there is an explicit grant 

of discretion contained in a statute at issue before the appellate 

court.”). “Summary judgment is appropriate only if there is no 

genuine issue as to any material fact and the moving party is entitled 

to a judgment as a matter of law.” Summit Operating, 2012 UT 91, ¶ 7 

(cleaned up).

ANALYSIS

¶15 The sole issue before us is the correct interpretation of the 

Access Interruption Statute. After we set forth the principles that guide 

our interpretation, we place the statute in context. We then analyze the 

statute accordingly and hold that the plain language of subsection 

(1)(n) of the Access Interruption Statute allows only the Commission 

to add to the statute’s list of circumstances if the Commission 

determines by administrative rule that the additional event is similar 

to the events listed in the statute. And we conclude that because the 
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Opinion of the Court

7

pandemic is not listed in the statute and has not been added to the list

by rule, the Commission did not err in granting summary judgment to 

the Counties.

I. THE ACCESS INTERRUPTION STATUTE ALLOWS FOR AN ADJUSTMENT IN

FAIR MARKET VALUE WHEN PROPERTY SUSTAINED A DECREASE IN FAIR

MARKET VALUE DUE TO ACCESS INTERRUPTION

¶16 Our primary objective when we interpret a statute “is to 

ascertain the intent of the legislature.” Summit Operating, LLC v. Utah 

State Tax Comm’n, 2012 UT 91, ¶ 11, 293 P.3d 369 (cleaned up). “[T]he 

best evidence of the legislature’s intent is the plain language of the 

statute itself,” and we construe “each part or section . . . in connection 

with every other part or section so as to produce a harmonious whole.” 

Id. (cleaned up). We thus “interpret statutes to give meaning to all 

parts, and avoid rendering portions of the statute superfluous.” Id.

(cleaned up). “When we can ascertain the intent of the legislature from 

the statutory terms alone, no other interpretive tools are needed . . . .” 

Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (cleaned up). We now 

turn to the statutory issue before us.

¶17 In Utah, “[a]ll tangible taxable property located within the 

state shall be assessed and taxed at a uniform and equal rate on the 

basis of its fair market value, as valued on January 1, unless otherwise 

provided by law.” UTAH CODE § 59-2-103(2). Thus, the amount of 

property taxes usually depends on the fair market value of the 

property as of January 1. Id.

¶18 The Access Interruption Statute, under the Property Tax Act,4

is an exception. It provides that “if, during a calendar year, property 

sustains a decrease in fair market value that is caused by access 

interruption, the owner of the property may apply . . . for an 

adjustment in the fair market value of the owner’s property as 

provided in Subsection (4).” Id. § 59-2-1004.6(2).

¶19 To obtain an adjustment under the Access Interruption 

Statute, the property owner has “the burden of proving, by a 

preponderance of the evidence: (i) that the property sustained a 

decrease in fair market value, during the applicable calendar year, that 

was caused by access interruption; (ii) the amount of the decrease in fair 

market value . . . ; and (iii) that the decrease . . . is not due to the action 

or inaction of the applicant.” Id. § 59-2-1004.6(4)(c) (emphasis added).

_____________________________________________________________

4 The Property Tax Act is codified at Title 59, Chapter 2 of the Utah 

Code. See UTAH CODE §§ 59-2-101 to -1906.
MILLER THEATRES v. TAX COMMISSION

Opinion of the Court

8

¶20 Most relevant here, the Access Interruption Statute states, 

“For purposes of this section ‘access interruption’ means interruption 

of the normal access to or from property due to any circumstance 

beyond the control of the owner, including: (a) road construction; 

(b) traffic diversion; (c) an accident; (d) vandalism; (e) an explosion; 

(f) fire; (g) a flood; (h) a storm; (i) a tornado; (j) winds; (k) an 

earthquake; (l) lightning; (m) any adverse weather event; or (n) any 

event similar to the events described in this Subsection (1), as 

determined by the commission by rule made in accordance with Title 

63G, Chapter 3, Utah Administrative Rulemaking Act.” Id. § 59-2-

1004.6(1).

II. BECAUSE THE PANDEMIC IS NOT A QUALIFYING CIRCUMSTANCE

UNDER THE ACCESS INTERRUPTION STATUTE, THE COMMISSION

CORRECTLY GRANTED SUMMARY JUDGMENT

¶21 Taxpayers challenge the Commission’s interpretation of the 

Access Interruption Statute, asserting that the “COVID-19 pandemic 

qualifies as access interruption.” Embedded in this framing is a 

threshold question—whether the statute recognizes the pandemic as a 

“circumstance beyond the control of the owner” that interrupted

“normal access to or from property.” See UTAH CODE § 59-2-1004.6(1). 

This threshold question must be answered in the affirmative to bring 

the Access Interruption Statute into play and to give a property owner 

the opportunity to meet its burden under subsection (4)(c) of the 

statute. See supra ¶ 19.

¶22 Taxpayers do not suggest that the pandemic fits into the plain 

language of any of the legislatively enumerated circumstances that 

potentially interrupt access. See UTAH CODE § 59-2-1004.6(1)(a)–(m). 

The pandemic is not, for instance, road construction, vandalism, or an 

adverse weather event. See id. Thus, this case ultimately boils down to 

whether and how the list of qualifying circumstances can be expanded.

¶23 As to the first inquiry, there’s no debate that the list may be 

expanded. The parties agree that the statute’s list of qualifying 

circumstances is not exhaustive. After all, “access interruption” is 

defined as the “interruption of the normal access to or from property 

due to any circumstance beyond the control of the owner, including” 

the enumerated events. Id. § 59-2-1004.6(1) (cleaned up) (emphasis 

added). The legislature has instructed that generally its use of the term 

“including” in statutes “means that the items listed are not an 

exclusive list, unless the word ‘only’ or similar language is used to 

expressly indicate that the list is an exclusive list.” Id. § 68-3-12(1)(f). 

And we have similarly recognized that the term “is routinely 

construed as introducing a non-exclusive, exemplary list.” Graves v.
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Opinion of the Court

9

N.E. Servs., Inc., 2015 UT 28, ¶ 53, 345 P.3d 619. Thus, the legislature’s 

use of “including” shows its intent for the enumerated events to be a 

non-exclusive list of qualifying circumstances. See id.5

¶24 But that conclusion does not end our analysis. We next must 

answer how the list can be expanded. Here, the legislature has 

provided a specific means for expanding the list.

¶25 Subsection (1)(n) provides that besides the thirteen 

enumerated events, “‘access interruption’ means interruption of the 

normal access to or from property due to any circumstance beyond the 

control of the owner, including . . . any event similar to the [listed] 

events . . . , as determined by the commission by rule made in 

accordance with Title 63G, Chapter 3, Utah Administrative 

Rulemaking Act.” UTAH CODE § 59-2-1004.6(1)(n). The Access 

Interruption Statute thus allows for the list of circumstances to grow

and dictates a specific avenue for doing so. The Commission, however,

has not taken that avenue here. It has not promulgated a rule adding 

the pandemic as a circumstance that could interrupt access.

¶26 Still, Taxpayers ask us to hold that the pandemic “is an access 

interruption event under the plain language” of the Access 

Interruption Statute, which they assert “is broad enough to include the 

COVID-19 pandemic, regardless of the Commission’s failure to promulgate 

the same in [a] rule.” (Emphasis added.) This we cannot do. Nor could 

the county boards of equalization for that matter. The statute’s plain 

language tells us how “any event similar to” the listed events is added 

as a “circumstance beyond the control of the owner”: an addition is 

accomplished “by the commission by rule made in accordance with . . . 

[the rulemaking procedures of the] Utah Administrative Rulemaking 

Act.” UTAH CODE § 59-2-1004.6(1)(n). Stated differently, to be 

considered a qualifying circumstance, the Access Interruption Statute 

requires the Commission to determine whether the additional event is a 

“circumstance beyond the control of the owner” similar to the events 

delineated by the legislature and to promulgate a rule to that effect 

_____________________________________________________________

5 In Graves, we concluded that the word “including” in the statutory 

definition of “fault” provided support for construing the comparative 

fault statute to include intentional torts. 2015 UT 28, ¶¶ 48–49, 53 

(citing UTAH CODE § 78B-5-817(2)). As we explain, infra ¶¶ 24–26, the 

Access Interruption Statute’s subsection (1)(n), unlike the fault 

definition, specifies who may expand the statutory list. Compare UTAH 

CODE § 78B-5-817(2), with id. § 59-2-1004.6(1)(n). The path for

expansion here goes to the Commission through the rulemaking 

process, not to this court through statutory interpretation.
MILLER THEATRES v. TAX COMMISSION

Opinion of the Court

10

through the rulemaking process.6 See id. We cannot simply declare the 

pandemic a circumstance for purposes of the Access Interruption 

Statute, usurp the Commission’s role, and thereby overlook 

subsection (1)(n)’s plain language. See Summit Operating, LLC v. Utah 

State Tax Comm’n, 2012 UT 91, ¶ 11, 293 P.3d 369 (explaining that we 

construe “each part or section” of a statute “in connection with every 

other part or section so as to produce a harmonious whole” (cleaned 

up)).

¶27 In sum, the Commission correctly granted summary 

judgment to the Counties. Given that the Commission has not made a 

rule adding the pandemic as a circumstance beyond the control of a 

property owner that is similar to those events identified in the statute, 

we conclude the pandemic is not an event that currently brings the 

Access Interruption Statute into play. See UTAH CODE § 59-2-1004.6(1). 

In so doing, we express no opinion on any potential administrative 

rule designating the pandemic as a qualifying circumstance under 

subsection 59-2-1004.6(1)(n).

CONCLUSION

¶28 We hold that Utah Code subsection 59-2-1004.6(1)(n) permits 

only the Commission to add to the legislatively enumerated events 

that put the Access Interruption Statute into play, provided that the 

additional event is similar to the enumerated events and the 

Commission makes the determination through the rulemaking 

process. Because the pandemic is not an enumerated event and has not 

been added as a qualifying event by rule, we allow the Commission’s

award of summary judgment to the Counties to stand.

_____________________________________________________________

6 The Utah Administrative Rulemaking Act allows interested 

persons to “petition an agency to request the making, amendment, or 

repeal of a rule.” UTAH CODE § 63G-3-601(2). See generally UTAH 

ADMIN. CODE R15-2. In light of that process and subsection (1)(n)’s 

language pointing to the Act, we are not at liberty to allow Taxpayers 

to avoid that step and have us interpret section 59-2-1004.6 in a manner 

that would deprive the Commission of its role under the Access 

Interruption Statute.